The Relationship Between the Continental Shelf Regime and a New International Instrument for Protecting Marine Biodiversity in Areas Beyond National Jurisdiction

ICES Journal of Marine Science (2017), doi:10.1093/icesjms/fsx111

The relationship between the continental shelf regime and a new international instrument for protecting marine biodiversity in areas beyond national jurisdiction

Joanna Mossop* Law Faculty, Victoria University of Wellington, PO Box 600, Wellington 6140, New Zealand *Corresponding author: tel: þ64 4 4636351; fax: þ64 4 4636365; e-mail: [email protected] Mossop, J. The relationship between the continental shelf regime and a new international instrument for protecting marine biodiversity in areas beyond national jurisdiction. – ICES Journal of Marine Science, doi:10.1093/icesjms/fsx111. Received 28 March 2017; revised 27 May 2017; accepted 1 June 2017.

States have acknowledged that the new internationally legally binding instrument (ILBI) for the conservation and sustainable use of marine biodiversity beyond national jurisdiction must take account of the interests of coastal states with continental shelves that extend beyond 200 nautical miles. This article argues that the ILBI should go beyond repeating the existing legal position as set out in international treaties and customary international law. In particular, the concept of sedentary species is unhelpful in the context of a legal regime governing the use of marine genetic resources. The article makes a number of suggestions for possible inclusions in the ILBI to clarify the relationship between the continental shelf regime and the regime for biodiversity beyond national jurisdiction. Keywords: area based management, beyond national jurisdiction, continental shelf, environment, international legally binding instrument, law of the sea, marine biodiversity, marine genetic resources, sedentary species.

Introduction instructed to consider the conservation and sustainable use of The international community is in the process of discussing the el- marine biological diversity of areas beyond national jurisdiction, ements of an international legally binding instrument (ILBI) for including marine genetic resources, measures such as area-based the conservation and sustainable use of marine biodiversity in areas management tools (ABMT), environmental impact assessments beyond national jurisdiction (BBNJ). Among the discussions, states and capacity building and the transfer of marine technology. At have repeatedly commented on the need to respect the rights of the time of writing, three meetings of the preparatory committee coastal states with continental shelves that extend beyond 200 nau- have been held. tical miles. However, little detail about this has yet been discussed. Among the key debates that have emerged from this process is The purpose of this paper is to analyse the respective rights and ob- the issue of the legal regime that applies to marine genetic re- ligations of states conducting activities near extended continental sources. The development of a marine biotechnology industry has shelves and discuss how the ILBI could be used to clarify those ob- led many states to believe that considerable proﬁts can be derived ligations and create a workable legal framework. from marine organisms. In particular, developing countries have In June 2015, the United Nations General Assembly resolved argued that living organisms found in the seabed beyond national to establish a preparatory committee that would make recom- jurisdiction (the Area) are, or should be, covered by the common mendations on the elements of a draft text of an ILBI to the heritage of mankind principle in the United Nations Convention General Assembly (GA Resn 69/292). This was the culmination of on the Law of the Sea (UNCLOS) (Treves, 2010; Leary, 2012). 9 years of meetings by an ad hoc working group established by This would require the sharing of beneﬁts derived from the ex- the General Assembly to study issues relating to the conservation ploitation of those organisms with the international community. and sustainable use of BBNJ. The preparatory committee was Other states are opposed to applying common heritage to marine

VC International Council for the Exploration of the Sea 2017. All rights reserved. For Permissions, please email: [email protected] 2 J. Mossop organisms beyond national jurisdiction. It is possible that principles found in Part VI of UNCLOS, relating to the continen- Negotiations may focus on creating a sui generis, or unique, re- tal shelf, will not work effectively in the context of regulating ac- gime that provides for access and benefit sharing processes, al- cess to marine genetic resources. The ILBI could contribute to though which organisms will be subject to that regime is wide clarifying the respective responsibilities of coastal states and states open at this stage (Druel and Gjerde, 2014). with vessels operating in the waters above the continental shelf. It Other issues arising from the discussions revolve around the may encourage cooperation that allows for effective management protection of marine biodiversity. It has been noted that the high of activities that have an impact on the continental shelf re- seas are regulated by sectoral regimes which are poorly coordi- sources. In doing so, it would further the overall goal of improv- nated. Some activities may not be regulated at all (Gjerde et al., ing the protection and sustainable use of marine biodiversity. 2008; Rochette et al., 2014). In light of this, there is a genuine This article explores these issues in the context of the four areas concern that marine biodiversity is not being protected as well as identified by the General Assembly for consideration by the it should be. Therefore, a range of proposals have centred around Preparatory Committee: marine genetic resources, ABMT, envi- environmental protection mechanisms including ABMT and re- ronmental impact assessment and capacity building and technol- quiring environmental impact assessments. One of the key issues ogy transfer. is the relationship between obligations created by the ILBI and existing institutions. During these discussions, it has often been pointed out that Coastal state rights and obligations in respect of the area beyond national jurisdiction does not include the conti- the continental shelf beyond 200 nm nental shelves of coastal states that extend beyond 200 nm. In Article 77 of UNCLOS provides that the coastal state has sover- these cases, the coastal state has sovereign rights over the re- eign rights over the continental shelf for the purpose of exploring sources of the continental shelf, while the resources found in the it and exploiting its natural resources. These resources include water column are beyond national jurisdiction. As explained be- both non-living resources such as oil and gas, and living resources low, this legal separation of responsibility creates serious practical that are sedentary species. Sedentary species are those organisms problems. It will be essential for the ILBI to address this problem. “which, at the harvestable stage, either are immobile on or under Any consideration of protecting biodiversity in areas beyond the seabed or are unable to move except in constant physical con- national jurisdiction will need to address the fact that some activ- tact with the seabed or subsoil.” The rights of the coastal state ities will have effects across jurisdictional boundaries. This is par- over the continental shelf do not affect the legal status of the wa- ticularly true for the continental shelf beyond 200 nautical miles. ters above the shelf (UNCLOS, art. 78). Activities conducted in the high seas could have a direct or indi- The focus of coastal state attention on sedentary species has rect impact on the biodiversity of continental shelves. For exam- tended to be on commercially valuable fisheries species such as ple, bottom trawling for high seas species will have a significant oysters, clams, scallops, crabs, and lobsters (Mossop, 2016). adverse impact on vulnerable benthic ecosystems in that location However, in the context of a conversation about protection and (Norse et al., 2012; Clark et al., 2016). The disposal of waste from sustainable use of biodiversity, the jurisdiction of coastal states is vessels or land-based sources might impact on continental shelf equally relevant to other types of sedentary organisms, which may species (Ramirez-Llodra et al., 2011). Carbon sequestration in the not have been traditionally viewed as commercially valuable. deep ocean that forms lakes of carbon dioxide above the seafloor Traditional fishing has taken place beyond 200 nautical miles on could alter the acidity or oxygen level of the seawater, making it some shelves, such as for scallops off the east coast of Canada and difficult for sedentary species to survive (Seibel and Walsh, 2001; the United States, and for snow crabs in the Barents Sea. Barry et al., 2004). However, because the parts of the continental shelf beyond 200 It is also important to remember that activities conducted by nautical miles will usually be very deep, it is less likely that com- the coastal state on the continental shelf can have an impact on mercial fishing of sedentary species will be the primary concern of biodiversity in the water column. This may affect biodiversity most states. Instead, the focus is likely to be on the use of deep within a state’s jurisdiction [if it affects the exclusive economic sea benthic ecosystems for biotechnology purposes (Leary et al., zone (EEZ)], another state’s jurisdiction (another EEZ) or the 2009). On extended continental shelves, species found at hydro- areas beyond national jurisdiction (the high seas). For example, thermal vents, cold seeps, or on seamounts may be of interest to oil and gas exploration and exploitation may impact on biodiver- researchers (Arrieta et al., 2010; Banks et al., 2015). sity through noise pollution from seismic surveys, accidental Coastal states must not take action that infringes or unjustifi- spills, the discharge of oily by-products of the production process, ably interferes with navigation and other rights and freedoms of and the decommissioning of the rig (Harris et al., 2016). Deep- other states [UNCLOS, art 78(2)]. This compares with the regime sea mining can result in habitat destruction and sediment plumes for the EEZ, in which both coastal states and flag states must give (Levin et al., 2016). Coastal states and states operating in the high due regard to the rights and duties of other states [UNCLOS, art seas will need to turn their minds to how to manage those effects. 56(3) and 58(3)]. Although coastal states must not interfere with This article sets out the key rights and obligations of coastal the rights of states operating in the high seas, this does not mean states in relation to the sedentary species of the continental shelf that coastal state interests must automatically give way to the ex- beyond 200 nautical miles and of flag states operating in the high ercise of high seas rights and freedoms. Instead, a coastal state seas above this shelf. It argues that the ILBI should go beyond may only interfere with high seas rights to the extent strictly nec- restating the existing legal principles relating to the continental essary for the coastal state to protect its interests in the continen- shelf beyond 200 nautical miles. Although existing international tal shelf (Mossop, 2016). law relating to the protection of the environment goes some way Coastal states have legal obligations to protect the biodiversity to imposing obligations on coastal and flag states, arguably they on their continental shelves. Part VI of UNCLOS imposes no ob- have not received sufficient attention to date. In addition, some ligation to protect sedentary species, compared with Part V The Continental Shelf and a new instrument for BBNJ 3 relating to the EEZ, which imposes obligations on coastal states circumstances. This is found in article 206 of UNCLOS and is to ensure the sustainable utilization of the living resources of the also a principle of customary international law (Pulp Mills, para EEZ. However, Part XII of UNCLOS imposes a number of envi- 204; Certain Activities case, para 104; Responsibility of States, para ronmental obligations on all states, including coastal states. In ad- 148). The obligation in article 206 applies in respect of any activi- dition, other treaties and customary international law impose ties that may cause substantial pollution or significant and harm- separate obligations. ful changes to the marine environment, wherever it may occur. First, coastal states must take steps to protect the environment The customary international law obligation applies primarily under their jurisdiction, which includes the continental shelf beyond where there is a significant risk of harm to transboundary areas 200 nautical miles. Article 192 of UNCLOS imposes a general obli- or areas beyond national jurisdiction and has been held to be part gation on states to protect and preserve the marine environment. of the obligation of due diligence. This has been interpreted as a positive obligation to take active mea- Customary international law also provides obligations to coop- sures to protect and preserve the marine environment, and a nega- erate and to notify and consult with other states when there is a tive obligation not to degrade the marine environment (South risk of significant transboundary harm (Certain Activities case, China Sea Arbitration, para 941). Article 194 requires states to pre- para 106). vent, reduce and control pollution of the marine environment from Therefore, coastal states have both rights and obligations in re- any source. It also requires states to preserve and protect rare or lation to the continental shelf beyond 200 nautical miles. The fact fragileecosystemsaswellashabitats.Therecanbenodoubtthat that a coastal state has the exclusive right to explore, exploit and some continental shelf ecosystemswillfallintothiscategory. conserve the resources of the extended continental shelf should The Convention on Biological Diversity (CBD) applies to areas be recognized. Because the protection of biodiversity in the vicin- under national jurisdiction and therefore applies to the extended ity of the shelf will depend on coastal states observing their envi- continental shelf. Under the CBD, coastal states must develop na- ronmental obligations, it would make sense for the ILBI to reflect tional strategies for the conservation and sustainable use of biodi- and incorporate those principles. The sections below expand on versity, identify and monitor components of biodiversity and how that recognition might be put into effect. where possible protect, manage, and restore biodiversity and ecosystems (CBD, arts 6, 7, and 8). Second, coastal states have responsibilities in respect of the envi- The rights and obligations of flag states in relation ronment beyond their jurisdiction. Article 194(2) of UNCLOS to the continental shelf beyond 200 nautical miles establishes that coastal states have a responsibility to ensure that ac- Although the rights of the coastal state to the continental shelf do tivities under their jurisdiction or control are conducted so as not not affect the status of the high seas above [UNCLOS, art 78(1)], to cause damage by pollution to the environment of other states, in reality the uses of the continental shelf and the high seas may and to ensure that pollution arising from their activities does not come into conflict. The exercise of high seas freedoms can impact spread beyond the areas they exercise sovereign rights. It is notewor- on the rights of the coastal state in respect of the resources of the thy that this obligation appears stronger in the way it is phrased continental shelf. An obvious example of this is the use of bottom than many statements of a customary international law obligation fishing that targets non-sedentary species but has a significant im- to prevent transboundary harm. The obligation not to cause trans- pact on ecosystems that include sedentary species. As noted boundary harm is often referred to as an obligation not to cause sig- above, flag states owe no express obligation to give “due regard” nificant transboundary harm (Pulp Mills case, para 101). to coastal state interests in the continental shelf. However, the The obligation to prevent transboundary harm applies to areas history of the Continental Shelf Convention 1958, on which Part beyond national jurisdiction, which includes the high seas and the VI of UNCLOS is based, is clear that high seas rights will some- Area [UNCLOS, art 194(2)]. According to the International Court times need to be curtailed to protect coastal state interests of Justice (ICJ), states have a general obligation “to ensure that ac- (Mossop, 2016). tivities within their jurisdiction and control respect the environ- There is no doubt that the flag state must ensure its vessels ment of other states or of areas beyond national jurisdiction” comply with the laws of the coastal state in relation to the re- (Threats or Use of Nuclear Weapons, para 29). The application of sources under the coastal state’s control. The sovereign rights of a this principle to areas beyond national jurisdiction was confirmed coastal state in the EEZ “encompasses all rights necessary for and by the International Tribunal for the Law of the Sea (ITLOS) in its connected with the exploration, exploitation, conservation and advisory opinion on the Responsibilities of States Sponsoring management of the natural resources, including the right to take Activities in the Area (Responsibility of States, para 148). Therefore, the necessary management measures” (M/V Virginia G, para coastal states with extended continental shelves must mitigate ac- 211). In the M/V Virginia G case, ITLOS found that the coastal tivities that have a negative impact on the marine environment of state could regulate bunkering of fishing vessels so long as it was the high seas or the Area. Given that activities on the continental connected to fishing (para 215). In addition, a flag state has an shelf beyond 200 nautical miles of necessity take place in the high obligation arising from article 192 to ensure compliance by its seas, this is a particularly important obligation for coastal states to vessels flying its flag with the conservation measures concerning consider. The obligation to prevent harm is usually interpreted as living resources in the EEZ (Fisheries Advisory Opinion, para 120). an obligation to act with due diligence. This means that the coastal Although article 77 does not refer explicitly to “conservation state must adopt appropriate rules and measures to ensure the out- and management” of continental shelf resources (Mossop, 2007), come, but also monitor activities (Pulp Mills, para 194). The exer- it would seem a logical step to say that the flag state also has an cise of due diligence may require the application of the obligation to comply with coastal state conservation measures en- precautionary approach (Responsibility of States, para 135). acted in respect of sedentary species. UNCLOS does not enter The coastal state is also under obligations to conduct prior as- into similar detail regarding the continental shelf compared with sessment of activities on their extended continental shelf in some the EEZ. Nevertheless, the nature of sovereign rights in both areas 4 J. Mossop is similar. As detailed above, coastal states do bear responsibility discerning between organisms that are sedentary versus those that for the protection of biodiversity on their continental shelf. are not will be an order of magnitude more complex. Therefore, coastal states will, in some circumstances, be able to Second, the idea that sedentary and non-sedentary organisms restrict the activities of other states, such as bottom trawling, if it are subject to different legal regimes does not make sense when is reasonably connected with the exploration and exploitation of considering species located in the same ecosystem (Korn et al., sedentary species (Mossop, 2016). 2003). A coastal state would have legal rights and obligations in The flag state also has a number of environmental obligations respect of some organisms but not others. For example, at a hy- that qualify its high seas freedoms. These include the obligations drothermal vent, coastal states would have sovereign rights in re- in Part XII of UNCLOS, and it is clear that those articles apply to lation to tube worms but not the shrimps that live in the same vessels operating on the high seas (South China Sea, para 940). ecosystem. And yet, this is the consequence if the UNCLOS sed- The Arbitral Tribunal in the South China Sea case found a failure entary species regime is applied to ecosystems located on a conti- to prevent the large scale harvesting of corals and giant clams nental shelf beyond 200 nm. could amount to a breach of articles 192 and 194(5) (South China Sea, para 960). These obligations reinforce the view that coastal state regulations imposed to protect sedentary species as part of Recommendations for the ILBI an ecosystem should be respected by flag states, unless they in- The General Assembly identified four elements that needed to be fringe or unjustifiably interfere with high seas freedoms. addressed in the preparatory committee for the ILBI. These were marine genetic resources, ABMT, environmental impact assessment and capacity building and technology transfer. The follow- The tension between concepts of biodiversity and ing sections consider how the ILBI could develop the legal sedentary species principles relating to the intersection between the continental It should be noted that the concept of sedentary species as con- shelf and the BBNJ regimes. tained in Part VI of UNCLOS can be inconsistent with the focus on the protection of biodiversity in Part XII of UNCLOS, in the CBD, or in the potential ILBI to protect BBNJ. The key problem Marine genetic resources is that the concept of biodiversity is dramatically different from In the context of bioprospecting, the sedentary species definition UNCLOS’s allocation of rights over resources. The CBD defines is unhelpful for a number of reasons. One problem is that the ge- biodiversity as “the variability among living organisms from all netic material of an organism can be sampled when a species is an sources including, inter alia, terrestrial, marine and other aquatic adult or when the organism is in a larval form. For many seden- ecosystems and the ecological complexes of which they are part; tary species, their larvae are distributed in the water column as ju- this includes diversity within species, between species and of eco- veniles. This raises questions about whether the larvae, if systems” (Art 2, CBD). As such, the idea of biodiversity is inti- collected by researchers in the water column, are covered by the mately associated with ecosystems rather than individual species. sovereign rights of the coastal state. The Convention refers to spe- One of the strengths of the concept of biodiversity was the move cies that are sedentary “at the harvestable stage” which is not eas- away from a single species model of environmental management ily applied to a biotechnology context (Allen, 2001; Mossop, to reflect the importance of the interdependence of organisms 2016, 2017). and ecosystems (Franklin, 1993). Another example of the problems posed by the definition is In contrast, the definition of sedentary species as a “resource” that scientific researchers can now gather genetic material from over which coastal states have control dates back to the 1950s and environmental DNA rather than requiring a sample of the organ- reflects an anthropocentric approach to the environment as a re- ism itself. This genetic material may comprise skin, faeces, mucus, source to be exploited (Scott, 1992). It views commercially valu- and other matter that is in the water (Barnes and Turner, 2016). able species in isolation from the ecosystem in which they are Some of the genetic material could be used for biotechnology found, and Part VI of UNCLOS makes no reference to sustain- purposes (Chistoserdova, 2010). It is possible for a researcher to ability or environmental protection. This approach was carried gather DNA from a sedentary species without collecting the actual over into UNCLOS from the Convention on the Continental organism or even making contact with the seabed. Shelf without modification. The definition of sedentary species Given the many difficulties with applying the sedentary species leads to some particular problems when applied in a modern con- definition in relation to marine genetic resources, if the ILBI sim- text to BBNJ. ply repeats the position that coastal states have sovereign rights First, UNCLOS is clear that the coastal state has exclusive over sedentary species, this will not resolve these problems. rights over some organisms found on the continental shelf, but Instead, the agreement should clarify how the coastal state rights not others. The determination of exactly which commercially work in a genetic material context. One possibility that is being valuable species were included within the definition of sedentary discussed is that the ILBI should create a sui generis regime for species has proved controversial in the past, primarily because the marine genetic resources for the high seas and the Area (Mossop, definition “has little or no relationship to biological taxonomy” 2017). If so, this should include a mechanism that balances the (Allen, 2001). For example, crabs, lobsters, and scallops are all ca- rights of coastal states and flag states in an equitable manner. The pable of independent movement off the seafloor and states have challenge will be how to recognize the rights of coastal states in a disagreed about whether they are correctly classified as sedentary way that reflects the level of their interest. One could imagine a species (Mossop, 2016). The definition is difficult to apply even variety of ways in which this might be done. First, the ILBI could in situations where considerable amount is known about the biol- take a restrictive interpretation of coastal state rights. Second, the ogy of the species concerned (Allen, 2001). If the focus is on a ILBI could expand coastal state rights to cover seabed ecosystems. particular ecosystem, such as a hydrothermal vent or a seamount, Finally, coastal states could relinquish rights over the genetic The Continental Shelf and a new instrument for BBNJ 5 resources of sedentary species in return for some advantages un- be completely avoided. The challenge would be to design a regime der a global access and benefit sharing regime. that adequately compensated coastal states for the perceived losses One option is to stipulate that the coastal state will only have associated with the removal of their interest. However, the difficul- sovereign rights over species that are sampled directly from the ties already discussed mean that coastal states should not overesti- continental shelf. If such samples are of sedentary species, the mate the value of their sovereign rights to the genetic resources of coastal state has the right to control access to such species, and to sedentary species beyond 200 nautical miles. enter into access and benefit sharing arrangements in relation to All of these options would involve some compromise by all the use of those species. However, if juveniles are collected in the states, as they would involve, to a greater or lesser extent, a depar- water, or if environmental DNA is collected near, but not on, the ture from a strict application of the sedentary species concept. continental shelf, this would fall outside the coastal state’s juris- There will undoubtedly be political barriers to be overcome. diction. The advantage of this is that it avoids the question of However, it is preferable to have a workable system rather than when the “harvestable stage” of the organism is. It also simplifies attempt to perpetuate the sedentary species definition in a context the issue for both states and researchers, who will know what legal that it was never intended to cover. regime applies based on the location of the organism or DNA that is sampled. Where the coastal state has concerns about the protection of fragile ecosystems, it may be able to impose condi- Area-based management tools tions on access. The key disadvantage is that this perpetuates a di- Although it is not yet clear what shape the ABMTs will take under vided ecosystem approach, whereby some species in the same an ILBI, it cannot be denied that the coastal State will have an im- ecosystem are under the control and jurisdiction of the coastal portant interest in any ABMTs established in the high seas above state, while others are subject to the high seas regime. It is also its extended continental shelf. At a minimum, coastal states unlikely that the coastal state could prohibit access to the non- should be consulted when ABMTs are proposed for an area near sedentary species in the ecosystem even if it is concerned that the their extended continental shelf. More substantive requirements research activity might be harmful to the environment in some could expand on obligations to cooperate with the coastal state. way. For example, could a coastal state impose a marine protected A primary interest of the coastal state will be to ensure that any area to protect sedentary species in a vulnerable marine ecosystem measures implemented under an ABMT would not interfere with and insist that researchers refrain from accessing the non- its rights over sedentary species, or in its exploration and exploi- sedentary species on the basis that sedentary species will be af- tation of the continental shelf. For example, restrictions on noise fected? This would seem doubtful in the current legal framework in the water column could impact on the ability of the coastal under UNCLOS unless there was a clear and significant detriment state to authorize seismic surveys for hydrocarbons in the conti- to the coastal state interests in the sedentary species. nental shelf. In such a case, the coastal state interests should be A second approach would be to create a “continental shelf ben- considered in the creation of the mechanisms which can be thic zone” within which the coastal state would have rights to ex- drafted so as to not interfere with coastal state rights. Coastal ploit the genetic resources of the shelf, but also responsibilities to states might wish to see an opt-out provision if they believe that protect vulnerable marine ecosystems. This would extend the the ABMT would restrict their interests. A general principle that rights of the coastal state to all organisms in seabed ecosystems. the parties should not undermine coastal state rights might be This is consistent with the view of some commentators who have worth including. The process should contain a dispute settlement suggested that organisms found at hydrothermal vents should be process to resolve disagreements about the appropriate levels of legally managed as an ecosystem (Korn et al., 2003; Leary, 2007; environmental protection. Oude Elferink, 2007). The justification for such an approach Another factor to consider is the coastal state may wish to es- would be that it better reflects an ecosystem approach to manage- tablish ABMTs for the water above the extended continental shelf ment of biodiversity on the continental shelf. It also would be in order to support environmental protection measures taken in simpler to apply than the sedentary/non-sedentary approach respect of shelf biodiversity. At present, few mechanisms exist to mentioned above. If the coastal state was not entitled to claim facilitate coherent measures at the request of the coastal state. rights to genetic material found outside the benthic zone, this One situation where coastal states have taken steps to protect would balance the interests of the coastal state and researchers as benthic ecosystems from high seas activities is in the Oslo/Paris some genetic material from the benthic zone will inevitably Convention (OSPAR) region in the north-east Atlantic. Portugal be found elsewhere as juveniles or environmental DNA. and the UK have worked with OSPAR and the North East Considerable thought would need to be given to the definition of Atlantic Fisheries Commission (NEAFC) to put in place measures the continental shelf benthic zone: is it based on a uniform dis- above their continental shelves beyond 200 nautical miles. For ex- tance from the shelf, or would it be defined more in relation to ample, NEAFC has closed some areas above the continental shelf particular types of ecosystems (Leary, 2007)? of the UK and Portugal to bottom fishing in order to protect sea- A third option would be to incorporate sedentary species on mount ecosystems (Hall-Spencer et al., 2009; Ribeiro, 2014; the continental shelf in a sui generis regime that would apply to Mossop, 2016). However, not all regions have existing organiza- genetic resources in the high seas and in the Area. This would re- tions to consider coastal state requests for protection, or have or- quire coastal states to give up the exclusive right to genetic mate- ganizations with the capacity to do so. In the absence of a rial in sedentary species, but in return coastal states with extended regional organization and regional fisheries management organi- continental shelves could be given special status when applying zation such as OSPAR and NEAFC, attempts to get protection in any benefit sharing provisions under the sui generis regime. The the high seas will rely on working through a range of existing sec- details of such an arrangement would depend on the details of any toral organizations (Druel et al., 2012; Freestone, 2014). such regime. The advantage would be that the problematic appli- In order to facilitate the consideration of protection mecha- cation of the sedentary species concept to genetic material would nisms relating to the extended continental shelf, the ILBI should 6 J. Mossop include a process that allows a coastal state to initiate a discussion With this in mind, any assistance that can be provided to about using ABMTs to support coastal state objectives. The final coastal states to increase their understanding of the biodiversity shape of this process could vary depending on the final content of on their continental shelf will assist with the broader goal of pre- the ILBI and how it provides for the establishment of ABMTs. Of serving and protecting marine biodiversity. Although it is difficult course, one of the key issues that needs to be resolved in the nego- to incorporate this into treaty language, one of the objectives of tiations is the relationship between the ILBI and other regional the capacity building effort should be focused on improving the and global organizations. If the ILBI ultimately leaves the estab- ability of coastal states to protect their biodiversity. This could be lishment of ABMTs to such organizations, it could still set out done through creating scientific partnerships with developing some general principles relating to the relationship between country researchers. ABMTs and coastal states. It would however, require coastal states to work with existing organizations to achieve their goals. Conclusion The foregoing discussion has highlighted some of the issues relat- Environmental impact assessments ing to the intersection between the continental shelf beyond 200 As discussed above, the obligation to conduct environmental im- nautical miles and the protection of biodiversity beyond national pact assessments in certain cases is already a matter of interna- jurisdiction. The primary difficulty is the fact that the concept of tional treaty and customary law. Both coastal states and flag states sedentary species, which underpins the coastal states’ interest in must ensure that assessments are conducted where there is a risk the biodiversity of the shelf, was designed for a very different pur- of significant transboundary harm or harm to the areas beyond pose than the protection of biodiversity. It is almost impossible national jurisdiction. For the coastal state, this will require careful to apply in the context of genetic resources when there is a differ- consideration for almost all activities on the continental shelf be- ent legal regime that applies to the non-sedentary species in the yond 200 nautical miles. The obligation to conduct assessments is water above the shelf. closely connected to obligations to notify and consult with affected Of course, it is still early in the negotiations and it is impossible states. Arguably then, it is already part of customary international to predict how much content the international community will law that the coastal state be notified and consulted if activities in choose to include in the ILBI, and how much will be left to exist- the high seas threaten the biodiversity of the continental shelf. At a ing organizations. However, the ILBI can, and should, go beyond minimum, the ILBI can articulate these obligations clearly. simply repeating the content of UNCLOS in relation to the conti- An obligation to notify and consult does not provide the nental shelf. Instead, there is an opportunity to create a more coastal state with a right to veto activities undertaken by other workable system and avoid unnecessary conflicts by elucidating states in the high seas. A more complicated question is whether expectations on both coastal and flag states operating on and near the ILBI could clarify matters that require the permission of the the continental shelf. At the very least, the ILBI should set out coastal state before they can take place. For example, it might be clearly the environmental obligations that apply to such activities possible to argue that some activities (such as bottom fishing) are including obligations to assess the environmental impacts of the so likely to interfere with coastal state interests that permission is activities, and to notify and consult with affected states before un- required before it is conducted on the continental shelf by other dertaking activities that have a possibility of harm to the marine states (Mossop, 2016). environment. It would be desirable to articulate an obligation to Another matter which the ILBI could assist with is the notifica- cooperate with the coastal state when other states are undertaking tion requirement on coastal states when they conclude that activi- activities that could intersect with the coastal state’s rights. In rela- ties under their jurisdiction may have negative consequences on tion to marine genetic resources and ABMTs, the ILBI could go the high seas. Under existing international law, it is clear that further and impose new arrangements that protect the interests of there is an obligation to notify and consult with neighbouring coastal states and flag states, while pursuing the goal of the protec- states if there is a risk of significant transboundary harm. But, if tion of marine biodiversity on and beyond the extended continen- the risk of harm is to the high seas, how is the coastal state’s obli- tal shelf. Finally, this article has suggested some options for gation to notify to be satisfied? The ILBI could create a reporting moving beyond the problems that arise when applying the defini- system which facilitates the notification of potential risks identi- tion of sedentary species to marine genetic resources. fied by environmental impact assessment. 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Handling editor: Andrew Serdy